Republic of the PhilippinesSandiganbayan

Quezon City***

SEVENTH DIVISION

A4INUTES of the proceedings held on 21 June 2017.

Present:

Hon. ALEXANDER G. GESMUNDO ChairpersonHon. MA. THERESA DOLORES C. GOMEZ-ESTOESTA — MemberHon. ZALDYV. TRESPESES- Member

The following resolution was adopted:

Crinu Case Nos, SB-17-CRM'0201 to 0218 - People vs. THOMAS DE LARADUMPIT, JR., ETAL.,

This resolves the following:

1. Accused Thomas L. Dumpit, Jr.'s "OMNIBUS MOTION FORREINVESTIGATION WITH MOTION TO HOLD IN ABEYANCE THEDETERMINATION OF PROBABLE CAUSE FOR THE ISSUANCE OFWARRANT OF ARREST" dated February 17, 2017;'

2. Accused Emmanuel Alexis G. Sevidal's "MOTION TO QUASHMULTIPLE CRIMINAL INFORMATIONS WITH MOTION TO HOLD IN

ABEYANCE ISSUANCE OF WARRANTS OF ARREST" dated February17, 2017;-

3. Accused Thomas L. Dumpit, Jr.'s "MANIFESTATION" datedFebruary 20, 2017;^

4. Accused Sofia D. Cruz and Ofelia E. Ordonez's "MOTION TO

QUASH CRIMINAL INFORMATIONS WITH MOTION TO HOLD INABEYANCE ISSUANCE OF WARRANTS OF ARREST" dated February

23, 2017;-^

5. Accused Gregoria G. Buenaventura's "MANIFESTATION ANDMOTION TO ADOPT MOTION TO QUASH INFORMATION" datedMarch 3,2017;^

6. Accused Elsie Walican's undated 'MOTION TO DISMISS" whichwas received by the Court on April 18, 2017;^

' Rollo, Vol. 3, pp. 85-331.- Id. at 332-340.

Md. at 348-352.

id. at 356-363.

5 id. at 380-381.

6 Rolio, Vol. 4, pp. 87-124.

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7. Accused Lilibeth B. Aloot-Macazo's undated "OMNIBUS

MOTION" which was received by the Court on March 16, 2017;^

8. The prosecution's "CONSOLIDATED COMMENT/OPPOSITIONxxx" dated March 6, 2017;^

9. Accused Thomas L. Dumpit, Jr.'s "MANIFESTATION" datedMarch 13, 2017;^

10. Accused Thomas L. Dumpit, Jr.'s "MANIFESTATION" datedMarch 28, 2017;'®

11. Accused Thomas L. Dumpit, Jr.'s "REPLY WITH MOTION TOADMIT" dated March 24, 2017;"

12. Accused Gregoria G. Buenaventura's "REPLY TO THEPROSECUTION'S COMMENT/OPPOSITION TO MOTION TO QUASH"dated April 10, 2017;'-

13. Prosecution's "COMMENT/OPPOSITION" re: Omnibus Motion

filed by accused Lilibeth B. Aloot-Macazo" dated April 20, 2017;'^

14. Prosecution's "SUPPLEMENTAL COMMENT/OPPOSITION"

re: Omnibus Motion filed by accused Lilibeth B. Aloot-Macazo" dated April26, 2017;'''and

15. Prosecution's "OPPOSITION (RE: ACCUSED ELSIE D.WALICAN'S MOTION TO DISMISS)" dated April 27, 2017.''

* Accused Cruz and Ordonez's Motion was adopted by accusedAmata.'^

Before the Court are several motions filed by accused in this caseseeking for the quashal of the Informations and for the dismissal of the multiplecases filed against them. The facts of the case are as follows:

' Rollo, Vol. 3, pp. 441-442.«Id. at 410-418.

Ud. at. 421-424.

'"Id. at 453-456.

" Id. at 477-491.

Id. Vol. 4, pp. 85-86.Id. at 131-134.

Id. at 138-146.

Id. at 147-150.

RoUo, Vol. 3, p. 378 (Order dated 2 March 2017).

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The Informations

The Infoimations'^ allege that accused Thomas De Lara Dumpit, Jr.(Dumpit, Jr.), then Congressman of the Second District of La Union, requestedthe Department of Budget and Management (DBM) to issue Special AllotmentRelease Order (SARO) for livelihood projects in 18 barangays in Tubao, LaUnion to be funded by his Priority Development Assistance Fund (PDAF).

Gondelina Guadalupe Amata (Amata) is the President of the NationalLivelihood Development Corporation (NLDC),'^ a government owned andcontrolled corporation, which is the implementing agency of accused Dumpit,Jr.'s livelihood projects subject of this case. Accused Dumpit, Jr. indorsed toaccused Amata the Kabuhayan at Kalusugan Alay sa Masa Foundation, Inc.(KKAMFI), a non-governmental organization (NGO) organized by accusedFlerida A. Alberto (Alberto), Marilou L. Antonio (Antonio), Godofredo B.Roque (Godofredo), Rodrigo Doria (Doria), Maria Paz B. Vega (Vega), andMa. Neriza V. Gador (Gador) to act as "project partner" in implementing thelivelihood projects. The indorsement was made in disregard of appropriationlaw and its implementing rules and regulations and without the benefit ofpublic bidding.

Dumpit, Jr., Amata and Antonio entered into a Memorandum ofAgreement (MOA) for the implementation of the PDAF-funded projects.Accused KKAMFI officers and staff prepared the project proposal, workfinancial plan, proposed distribution list and other related documents. Dumpit,Jr. on the other hand, approved the proposal and signed the documents."^

Thereafter, accused officers/employees of the NLDC, namely: NLDCPresident Amata, Chief Budget Specialist Ofelia Elento Ordonez (Ordonez),Budget Officer IV Filipina Tolentino Rodriguez (Rodriguez), Director IV forAccounts Servicing and Asset Management Group Emmanuel Alexis GagniSevidal (Sevidal), Division Chief III of Asset Management Division GregoriaGarcia Buenaventura (Buenaventura), Chief Financial Specialist Sofia DaingCruz (Cruz), Director IV Chita Chua Jalandoni (Jalandoni), and Officer EvelynP. Sucgang (Sucgang) facilitated, processed and approved the disbursement ofthe PDAF. Accordingly, disbursement vouchers (DVs) and theircorresponding Landbank checks were issued for the three (3) SAROs, to wit:SARO No. ROCS-08-09551; SARO No. ROCS-09-01873; SARO No. G-09-07692.-'

/?o//o, Vol. 1, pp. 1-84.'8 htip:.'/wvv\\'.nldc.iiov.oh-HO\lE/tahitfSS-Default.asp.w last visited on 20 June 2017.

Rollo, Vol. 2, pp. 3, 7, 11, 14, 18, 22, 26, 30, 35.Id. at 3, 7, 11, 14, 18, 22,26,30,35,40, 44,49, 55,61,67, 72, 77, 82.Id. at 3, 7, 11, 14, 18, 22,26, 30, 35, 40, 44, 49, 55, 61, 68, 73, 78, 83.

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Accused NLDC officers and staff allegedly did the processing of theDVs and the issuance of checks without carefully examining the qualificationof KKAMFI and the supporting documents of the transaction. Either accusedAntonio, Vega or Gador received the checks issued and together with accusedKKAMFI officers and staff, they submitted falsified documents that show thepurported implementation of the PDAF-funded projects. It appears howeverthat the alleged projects were non-existent or "ghost projects," thus allowingKKAMFI to divert the funds for their personal use.

Accused Dumpit, Jr., Walican, Alberto, Antonio, (Godofredo) Roque,Doria, Vega, Gador, Aloot, Estaloza, Palway, (George) Roque, Soriano andBarredo prepared and/or signed inspection reports, official receipts, salesinvoices, project proposal and other liquidation documents to show thepurported implementation of the supposed projects, which Dumpit, Jr. certifiedto NLDC as fully completed.

Proceedings before the Ombudsman

The Fact Finding and Investigation Bureau of the Deputy Ombudsmanfor the Military and Other Law Enforcement Offices (FFIB-MOLEO) filed anAffidavit-Complaint-^ against Dumpit, Jr. and the other accused forparticipating in a scam involving "ghost projects" using the latter's PDAFfunds.

Dumpit, Jr. claims that the transactions were made without hisparticipation and that his signatures in the documents showing the transactionswere not his. The Office of the Ombudsman (0MB) issued a ConsolidatedResolution dated 8 April 2016 finding probable cause for Malversation andviolations of the Anti-Graft Law.-"*

Dumpit, Jr. filed a Motion for Partial Reconsideration alleging that therewas no basis for conspiracy alleging that his signatures in the documents,which indicated his participation, were forged. On 1 September 2016, he fileda Supplemental Motion for Partial Reconsideration attaching therewith the"Examination Report" made by RA Document Examination Consultants.According to the examination conducted by Rogelio G. Azores, it was reportedthat the signatures of Dumpit, Jr. in 11 documents were indeed forged.^^ On 4November 2016, the 0MB issued its second Consolidated Order denying allmotions for reconsideration.-^

" Rollo, Vol. 2, pp. 3, 7, 1 1, 15, 19, 23, 27, 31, 35." Rollo, Vol. 3, pp. 110-147.

Rollo, Vol. 1, pp. 19-87.Rollo, Vol. 3, pp. 274-276.Rollo, Vol. 1, pp. 88-1 15.

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Proceedings Before the Sandiganbayan

On 10 February 2017, Informations were filed against herein accusedfor violation of Sec. 3(e) of Republic Act No. 3019 (R.A. No. 3019) docketedas SB-17-CRM-0201 to 0209; violation of Art. 217 (Malversation of PublicFunds) of the Revised Penal Code docketed as SB-17-CRM-0210 to 0212; andMalversation of Public Funds through Falsification of Public Documentsdocketed as SB-17-CRM-0213 to 0218.

Accused Dumpit, Jr.'s Omnibus MotionFOR REINVESTIGATION WITH MOTION

In his omnibus motion,-^ accused Dumpit, Jr. alleges that the 0MBfailed to consider the Examination Report, which states that his signatures wereforged and not authentic in the following documents:

a) Letter indorsing KKAMFI as project partner andrequesting NLDC to release the funds directly to the NGO{Annex 0;

b) Memorandum of Agreement;

c) Approval of the Proposed Distribution List/ProjectBeneficiaries of Manicures Sets, Barbers Kit and SewingMachines (Annex 1-1, undated)',

d) Letter addressed to Amata requesting the release of thefund directly to KKAMFI (Annex J);

e) Letter addressed to Amata requesting the release of theremaining tranche of his PDAF directly to KKAMFI(Annex L);

f) Inspection Reports (Annex M-4, M-5);

g) Inspection Reports dated May 12 and 14, 2009;

h) KKAMFI Final Project Physical Report; and

i) Letter addressed to Amata certifying that the project was100% completed.

27 Rollo, Vol. 3, pp. 85-331.

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Accused Dumpit, Jr. alleges that since his signatures in the above-mentioned documents were forged, there is no basis for the finding that he isinvolved in any conspiracy and in the alleged falsification, which resulted inthe malversation of public funds.

He claims that his only participation was his recommendation to theHouse of Representatives, through the Appropriations Committee, to makeNLDC the implementing agency (IA) for the project. Accused Dumpit, Jr.believes that his recommendation will not suffice to constitute as an overt act

that would make him complicit to a criminal conspiracy. He asserts that he hasno participation in the approval of the NLDC as the lA and in determiningwhich NGO will implement the PDAF project.

Accused Dumpit, Jr. believes that there being an empirical proof offorgery and an absence of proof on the authenticity of his signatures, the 0MBlacks basis in finding a reasonable ground to believe that a crime has beencommitted.

Accused Sevidal's Motion to Quash

Multiple Criminal Informations with Motion

Accused Sevidal alleges in his motiom^ that the multiple Informationsfor malversation should be quashed for being violative of Sec. 13, Rule 110, inrelation to Sec. 3, Paragraph (f) of Rule 117 of the Revised Rules of Court.

Accused posits that the Informations for malversation do not allege actsconstituting two separate or distinct crimes of malversation of public funds.He believes that what were supposedly committed was a single crime ofmalversation of public funds through falsification of public document for eachSARO. The nine Informations for malversation corresponding to each DVwere mere components of only one crime of malversation, since they wereimpelled by a single criminal resolution, intent or design. Thus, theInfbimation for each DV must be consolidated to one for each SARO.

He asserts that while each SARO was released to KKAMFI in severalDVs, those were only part of one and the same transaction covered by a singleSARO. The defalcation was a continuing offense because the DVs were partof KKAMFTs implementation of the livelihood projects of Dumpit, Jr.

Accused maintains the same reasoning with respect to the Informationsfor each DV in cases of violation of Sec. 3(e) of R.A. No. 3019.

RoHo, Vol. 3, pp. 332-340.

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Thus, he avers that the Informations must be consolidated into a singleInformation for violation of Sec. 3(e) of R.A. No. 3019 and another one formalversation of public funds through falsification of public documents for eachof the three (3) SAROs.

Accused Cruz and Ordonez' Motion to Quash

Criminal Informations with Motion

Accused Cruz and Ordonez alleged in their motion to quash^^ the sameissue raised by Sevidal in the latter's motion.

Accused Buenaventura, on the other hand, filed a Manifestation andalleges that she adopts the motion to quash filed by accused Cruz and Ordonez.

Consolidated Comment/Opposition

On the motion of accused Dumpit, Jr., the prosecution argues, throughits Comment/Opposition^^ that the issue on forgery was already raised in saidaccused's motion for partial consideration and supplemental motion for partialreconsideration filed before the OMB during the preliminary investigationstage of the case.

The OMB reasoned that since a private firm - RA DocumentExamination Consultants — prepared the examination report, it could not beafforded the benefit of an official document. The fact that a retired NBI

examiner conducted the examination does not also clothe the process withofficial character. The prosecution considers the matter raised by Dumpit, Jr. amatter of defense that should be passed upon during trial. Hence, areinvestigation is clearly unwarranted in this case.

As to accused Sevidal, Cruz, Ordonez, Buenaventura and Amata'smotions to quash due to the filing of multiple Infoimations, the prosecutioncounters that the filing of separate Information for every DV is sanctioned bythe Rules on Criminal Procetoe. Each Information filed against them chargesonly one offense pursuant to the Rules of Court.

In line with this, the prosecution invokes Ramiscal v. Sandiganbayan^'wherein it was held that "(t)he requirement of singularity of criminal intentdoes not exist because there are as many criminal intents as there areanomalous transactions, causing grave damage to the government at each

Rollo, Vol. 3, pp. 356-363.id. at 410-420.

3' 530 Phil. 773-802 (2006).

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instance." It was further held that the accused in said case was motivated byseparate intents as he signed each document, all of which are criminal incharacter and hence, a corresponding Information should be filed for each andevery act of falsification committed.

The prosecution argues that the question whether there is a single intentonly or whether the acts charged constitute a 'continuous offense' are factualissues that can be resolved after trial on the merits and is not considered a

ground for the quashal of an Information.

Accused Dumpit, Jr.'s Reply

WITH Motion to Admit

In his Reply^- to the prosecution's Consolidated Comment/Opposition,Dumpit, Jr. reiterates that his signatures on the documents were forged and thatthe prosecution should have required him to submit a record of his authenticsignature.

Accused Buenaventura's Reply

TO THE Prosecution's Comment/Opposition

Accused Buenventura alleges that it is a matter of record that in allPDAF cases pending with the Sandiganbayan, the OMB has filed only oneInformation per SARO, regardless of the number of payment tranchesinvolved. Accused avers that this was not followed in the instant cases and

claims that there was splitting of Information.^^

Accused Walican's Motion to Dismiss

Accused Walican contends that she did not participate in the illegaltransactions from its commencement up to its termination. She disavows theaction taken by the lA in processing the release of funds, which led to theissuance of a check to the NGO.^"^

She asserts that she has no control over the NGO, which allegedlymanufacture fictitious reports and supporting documents to make it appear thatthe project was completed. Accused Walican claims that the alleged fictitiousdocuments used to justify the release of the funds came from the NGO.

Rollo, Vol. 3, pp. 477-591.Rollo, Vol. 4, p. 86.Id. at 115.

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Accused posits that she has nothing to do with the liquidations because she isnot an employee of the NGO.

Accused Walican also claims that the documents allegedly signed by herwere forged and that there is no evidence that would show she conspired withany of the accused to commit the crimes attributed to her.

She added that she is not an accountable officer in contemplation of lawand therefore, could not be charged with the crime of malversation of publicfunds and malversation thimgh falsification of public documents.

Opposition to Accused Walican's Motion

The prosecution, through its Opposition, alleges that there are at least 13documents that would show Walican's participation in the disbursement ofPDAF funds, as established by the Commission on Audit (COA) in its SAOReport No. 2012-03 and the field investigation reports submitted by FFIB-MOLEO. It counters that Walican's claim of forgeiy is a matter of defensethat should be passed upon during trial. Forgery is not presumed and must beproved by clear, positive and convincing evidence.

Moreover, it added that an accused that is not an accountable officer

might still be charged with malversation if he conspired with an accountableofficer. It argues that conspiracy need not be proved by direct evidence andmay be infen'ed from the conduct of the accused indicative of joint purpose,concerted action and concuiTence of sentiments.

Omnibus Motion filed by

Accused Lilibeth B. Aloot-Macazo

Accused Aloot-Macazo alleges that she submitted with the 0MB on 8March 2017 a counter-affidavit to the voluminous complaint filed against herupon learning the same through news articles. On even date, accused receiveda letter from the Sandiganbayan, where she learned that the 0MB had alreadyfiled Informations against her. She claims that her case is still in its preliminaryinvestigation stage. Further, she alleges that the cash invoices, deliveryreceipts and official receipts attached in the complaint were all counterfeit.^^

35 Rollo, Vol. 3, p. 441.

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prosecution's Comment/Opposition and

Supplemental Comment/Opposition to

Accused Aloot-Macazo's Omnibus Motion

The prosecution contends that accused Aloot-Macazo's motion isdefective for failure to specify the date and time of the hearing, which violatesSections 4, 5 and 6 of Rule 15 of the Rules of Court. On substantial ground,the allegations that the official receipts, sales invoice and delivery receiptswere all falsified delves on evidentiary matter that should be threshed outduring trial.

In its Supplemental Comment/Opposition,^^ the prosecution declaresthat the Order of OMB-MOLEO requiring Aloot-Macazo to file a counter-affidavit was returned unserved, despite earnest efforts because the last orgiven address was unknown, or non-existent, or that the addressee moved outand left with no forwarding address. It points out that Sec. 4 (e) ofAdministrative Order No. 07 (Rules of Procedure of the Office of theOmbudsman) provides that "if the respondent cannot be served with the ordermentioned in paragraph 6 hereof, or having been served, does not complytherewith, the complaint shall be deemed submitted for resolution on the basisof the evidence on the record."

Moreover, the Consolidated Resolution dated 8 April 2016 was mailedto accused Aloot-Macazo but it was returned unserved despite several attemptsfor reason that the addressee is unlocated or refused to receive the legalprocess. Thus, it concludes that accused Aloot-Macazo was afforded dueprocess of law.

Our Ruling

We deny the Omnibus Motion for Reinvestigation filed by accusedDumpit, Jr., the Motion to Quash filed by accused Sevidal, Cruz, Ordofiez,Buenaventura and Amata, and the Motion to Dismiss filed by accused Walican,all for lack of merit

However, the Court grants the Omnibus Motion filed by accused Aloot-Macazo for being meritorious.

'^RoUo, Vol.4, p. 132." Id. at 138-141.

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Discussions

The defense of forgery should beventilated in a full-blown trial andnot during preliminaryinvestigation.

Accused Dumpit, Jr. prays that these cases be referred back to the 0MBfor reinvestigation as the latter failed to consider in its Resolution theexamination report, which declares his signature as forged in the documentsused in the questioned transactions. As such, he concludes that there is no basisin finding him liable for the crimes charged in conspiracy with the otheraccused.

We are not persuaded.

In Cambe v. Office of the Ombudsman^^, the Supreme Court mled thatthe defense of forgery should be ventilated during trial and not duringpreliminary investigation. It should be stressed that the authenticity of aquestioned signature cannot be determined solely upon its generalcharacteristics, or its similarities or dissimilarities with the genuine signatures.The duty to determine the authenticity of a signature rests on the magistratewho must conduct an independent examination of the signature itself, in orderto arrive at a reasonable conclusion as to its authenticity. Forgery cannot bepresumed. It must be proved by clear, positive and convincing evidence, andwhoever alleges it has the burden of proving the same.^^

Moreover, Section 22 of Rule 132 of the Rules of Court"*^ explicitlyauthorizes the court, by itself, to make a comparison of the disputedhandwriting with writings admitted or treated as genuine by the party againstwhom the evidence is offered, or proved to be genuine. Hence, the finding ofthe prosecutor on the issue of forgery should be ventilated in a full-blown trial.To stress, a preliminary investigation is not the occasion for the full andexhaustive display of the prosecution's evidence.

Besides, this Court notes that the examination report adduced by accusedDumpit, Jr. was prepared by a private individual. As such, said document is

G.R. Nos. 212014-15, G.R. Nos. 212427-28, G.R. Nos. 212694-95, G.R. Nos. 212794-95, G.R. Nos.213477-78, G.R. Nos. 213532-33, G.R. Nos. 213536-37, G.R. Nos. 218744-59, 6 December 2016.

Reyes v. Ombudsman, G.R. No. G.R. Nos. 212593-94, G.R. Nos. 213163-78, G.R. Nos. 213540-41, G.R.Nos. 213542-43, G.R. Nos. 215880-94, G.R. Nos. 213475-76, 15 March 2016.

Section 22. How genuineness of handwriting proved. — The handwriting of a person may be proved by anywitness who believes it to be the handwriting of such person because he has seen the person write, or has seenwriting purporting to be his upon which the witness has acted or been charged, and has thus acquiredknowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by acomparison, made by the witness or the court, with writings admitted or treated as genuine by the party againstwhom the evidence is offered, or proved to be genuine to the satisfaction of the judge.

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considered a private document, which must be properly authenticated before itis admitted in evidence."^' Said document constitutes accused Dumpit, Jr.'sdefense; the validity and merits, as well as the admissibility thereof are betterventilated during trial proper.

Thus, this Court finds no reason to refer these cases back to the 0MB

for reinvestigation to determine probable cause only on the basis of theexamination report.

There is probable cause for issuance ofwarrants of arrest for the cases forViolation of Sec. 3 (e) of R. A. No. 3019,Malversation of Public Funds andMalversation of Public Funds throughFalsification of Public Documents filedagainst accused.

This Court finds that there is substantial basis to support the finding ofprobable cause for the purpose of issuing a warrant of arrest against the accusedand to hold them for trial.

Probable cause to issue a warrant of an'est pertains to facts andcircumstances, which would lead a reasonably discreet and prudent person tobelieve that an offense has been committed by the person sought to bearrested."^- It is determined to address the necessity of placing the accused undercustody in order not to frustrate the ends of justice.

In the instant cases, accused were charged with three (3) offenses havingthe following elements:

a) For Violation of Sec. 3(e) of R.A. No. 3019:

1. The accused must be a public officer discharging administrative, judicialor official functions;

2. He must have acted with manifest partiality, evident bad faith orinexcusable negligence; and

3. That his action caused any undue injury to any party, including thegovernment, or giving any private party unwarranted benefits, advantage orpreference in the discharge of his functions

Republic of the Philippines i'. Sandiganbayan, et al., G.R. No. 188881, 21 April 2014.DeJoya v. Marquez, 516 Phil. 717-724 (2006).

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b) For Malversation of Public Funds under Art. 217 of the Revised PenalCode (RPC):

1. That the offender is a public officer;

2. That he had the custody or control of funds or property by reasonof the duties of his office;

3. That those funds or property were public funds or property forwhich he was accountable; and

4. That he appropriated, took, misappropriated or consented or,thi'ough abandonment or negligence, permitted another person to takethem.

c) For Falsification of Documents under paragraph 2, Article 171 of theRPC, which was a necessary means to commit the crime of malversation:

1. The offender is a public officer, employee or notary public;

2. That he takes advantage of his official position

3. He falsifies a document by causing it to appear that persons haveparticipated in any act or proceeding when they did not in fact so participate.

Falsification performed by a private person is punished under Ait. 172par. 1 of the RPC.'^^

A careful examination of the documents in the case records show that

upon request of accused Dumpit, Jr., the DBM issued SAROs coveringaccused's PDAF allocation. Thereafter, Dumpit, Jr. issued letters"^"^ addressedto NLDC President Amata requesting that the PDAF projects be implemented,and further endorsed KKAMFI as project partner and implementer. The NLDCprepared the Memorandum of Agreemenf^^ (MOA) signed by Amata, Dumpit,Jr., and Antonio.

Accused Antonio of KKAMFI prepared project proposals,"*^ proposeddistribution list/project beneficiaries,"^^ and other documents related theretowhich, was approved by Dumpit, Jr.

Art. 172. Falsijication by private individual and use of falsified documents. The penalty of prisioncorreccional in its medium and maximum periods and a fine of not more than R5,000 pesos shall beimposed upon:1. Any private individual who shall commit any of the falsifications enumerated in the next precedingarticle in any public or official document or letter of exchange or any other kind of commercialdocument; and xxx...Annex G, L, V, QQ, YY

•*5 Annex H, Y, ZZAnnex I, X-I, AAA

Annex I-l,X-2, BBB

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Accused Dumpit, Jr. requested Amata to release his PDAF directly toKKAMFI."^^ The NLDC then prepared the DVs."^^ In the subject DVs, it wasshown that Sevidal certified that the expenses/cash advance was necessary andlawful; Ordonez or Rodriquez certified on the availability of funds; Cruzcertified that supporting documents were attached to the DV; Amata approvedthe payment; and either Antonio, Vega, or Gador of KKAMFI received thepayment.

The records would also show that Sucgang, Jalandoni and Amata signedthe checks^^ issued by NLDC to KKAMFI. KKAMFI, on the other hand,issued official receipts^^ to NLDC. Upon receipt of the funds, KKAMFIproceeded with the implementation of the project.

Purchase Orders^- (PO) were issued for the procurement of manicuresets, barber's kits and electric sewing machines. The POs were conformed toby suppliers accused George Roque, Soriano and Ban*edo. Thereafter,KKAMFI submitted documents showing implementation of the project.

Accused Aloot-Macazo, owner of Kia-Ora Store, issued officialreceipts^^ for the items allegedly purchased for the implementation of theproject. While accused Walican, as Political Affairs Assistant, entered into acontract of service^"^ with accused Estaloza for rentals of sound system used inthe trainings to which Estaloza issued official receipts.Walican also enteredinto a contract^^ with accused Palway for the rentals of vehicles.

Accused Antonio, Dumpit and Doria signed the certification in theInspection Report^^ signifying that all the items delivered by the suppliers werecomplete and in good condition.

Subsequently, KKAMFI prepared the Final Project Physical Report^^signed by Antonio. The financial reports^^ were reviewed and evaluated byBuenaventura and noted by Sevidal, while Antonio prepared the Disbursementand Liquidation Report.^® Accused Dumpit, Jr. certified the completion of theproject.

Annex J

Annex K, P, R, EE, SS, CCC, IIIAnnex K-1, N-2, P-1, R-1, FF-1, MM, TT-1, ODD, JJJAnnex K-2, N-l, P-3, R-3, FF, EEE, KKKAnnex M, M-2, GG, FFF" Annex S-65, S-66, S-67, S-68, S-69, S-70, S-71, S-72, 73,74-81

Annex S-102

Annex S 103-120

Annex S-121

Annex M-4, M-5, M-8, M-9

Annex L-1, 0-1, Q-1Annex L-2, 0-2, Q-2Annex 0-3

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Upon the alleged completion of a certain percentage of the project,Dumpit, Jr. would write to Amata requesting for the release of subsequenttranches of payment.^'

However, different barangay chairpersons issued certifications^-alleging that no livelihood projects in the form of trainings and seminarsallegedly sponsored by Dumpit, Jr. were conducted in their respectivebarangay. Certifications^^ were also issued that no manicure sets, barber's kitsand manual/electric sewing machines were received by their barangays fromDumpit, Jr. Finally, the barangay chairpersons issued Certifications declaringthat some of the alleged beneficiaries are not bona fide residents of theirbarangay.

The affidavits'^ of Elizabeth Balbacal was also submitted alleging thatshe did not sign the documents attached to the liquidation report of KKAMFIand that her signatures appearing therein were all forged.

Thus, based on the above, it could easily be discerned that probablecause exists to support the indictment of the accused in the instant cases.

The filing of separate Informations forMalversation, Malversation throughFalsification of Public Funds, andViolation of Sec. 3(e) of R.A. No. 3019for each DV is proper.

In SB-17-CRM-0210 to 0212, accused were indicted only formalversation under Art. 217 of the RFC. As earlier discussed, the documents

attached to the records show probable cause that the accused misappropriatedthe PDAF allocation of accused Dumpit, Jr. through "ghost" or inexistentprojects. The Information in the three cases corresponds to each DV on the firsttranche of payment for the three SAROs.

However, in SB-17-CRM-0213 to 0218, accused were charged with sixcomplex crime of malversation through falsification of public documents forevery DV issued for the second and succeeding tranches of payment. It wasbecause after the first tranche of payment, accused allegedly introducedfalsified and fictitious documents that purportedly show that the project wasimplemented.

Annex L, O" Annex T to T-7

Annex UU to UU-IO

Annex T-8, 10, NNN, QQQ to QQQ-10" Annex T-20, T-21

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Malversation and falsification are two component crimes but bothfelonies result from a single criminal intent and, thus, treated as only one,subject to a single criminal liability/^ This is in consonance with Section 13,Rule 110 of the Rules of Court, which provides that a complaint or information"must charge but one offense, except only in those cases in which existing lawsprescribe a single punishment for various offenses."

Accused Sevidal, Cruz, Ordonez and Buenaventura maintains that thenine Informations for malversation corresponding to each DV were merecomponents of only one crime of malversation for each SARD, as it wasimpelled by a single criminal resolution, intent or design. Thus, accusedcontends that the nine Informations for malversation must be consolidated to a

single Infonnation of malversation of public funds through falsification ofpublic documents for each SARO. Accused added that the Informations forviolation of Section 3(e) of R.A. No. 3019 must also be consolidated to oneInfonnation for each SARO.

We do not agree.

This Court recognizes that the 0MB exercises wide latitude of discretionin determining whether a criminal case should be filed in court. Courts cannotinterfere in the discretion in the conduct of preliminary investigations and inthe determination of probable cause, where the OMB's discretion prevails overjudicial discretion, except when there is grave abuse of discretion.^^ Moreover,the determination of what and whom to charge are matters best addressed tothe discretion of the prosecutor.^^

The prosecution correctly pointed out that the issue was tackled by theSupreme Court in Ramiscal, Jr. v. Sandiganbayan.^^ In said case, Ramiscalclaims that he should be charged with only one count of estafa throughfalsification of public documents, instead of five separate charges. He assertsthat the charges filed against him constitute only one crime of estafa throughfalsification of public document in the nature of delito continuado, or a seriesof repetition of acts arising from one and the same criminal intent. As such, hecannot be held criminally liable for each deed of sale executed.

The Supreme Court addressed the issue in Ramiscal as follows:

Indeed, the determination of what charges to file and who are to be chargedare matters addressed to the discretion of the Ombudsman, including the matterof whether the crime perpetrated by petitioner and his co-accused under theInformations pending in the Divisions of the Sandiganbayan constitute delito

Intestate Estate ofVda. De Cariingcong v. People, 626 Phil. 177-211 (2010).Teresita A. Ciron v. Ma. Merceditas N. Gutierrez, et al., G.R. No. 194339-41, 20 April 2015.PCGG Chairman Magdangal B. Elma, et al. v. Reiner Jacobi, et al., 689 Phil. 307-356 (2012).530 Phil. 773-802 (2006).

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contimiado or classified as conciirso de delitos; or involve separate crimes underthe category of conciirso real delito involve factual issues. Such factual issuesshould be resolved after trial on the merits, and not in this case. The Court isbeing tasked to determine whether the several sales contracts executed bypetitioner and his co-accused were set afoot or triggered by a single impulse andoperated by an uninterrupted force however long a time it may occupy, which,however, is a matter best left to the determination of the trial court, in this case,the Sandiganbayan.

Thus, the issues being factual and evidentiary in nature are best threshedout during trial on the merits, and determined after reception of evidence byboth parties.

A person, not accountable officer, maybe charged with malversation if there isallegation of conspiracy with anaccountable officer in the Information.

In her Motion to Dismiss, accused Walican argues that she could not becharged with the crime of malversation of public funds and malversation ofpublic funds through falsification of public documents for the reason that shewas not an accountable officer.

The Court finds the argument bereft of merit.

An accountable public officer who misappropriates public funds orpublic property under his trust generally commits the crime of malversation.However, a private person, when acting in conspiracy with public officers, maybe indicted and, if found guilty, held liable for malversation.^®

Also, a public official who is not in charge of public funds or property byvirtue of official position, or even a private individual, may be liable formalversation or illegal use of public funds or property if such public officer orprivate individual conspires with an accountable officer to commitmalversation or illegal use of public funds or property.

In these cases, conspiracy was alleged in the Information as a mode ofcommitting the offense and not the crime itself. Hence, there is no need todetail the participation of each accused in the Information.^' The use of words"conspiring with one another" in the Information is sufficient.

Dinah C. Barriga v. The Honorable Sandiganbayan (4''' Division), et al., 496 Phil. 764-777 (2005)." .Amando A. Inocentes v. People of the Philippines, et al., G.R. Nos. 205963-64, 7 July 2016.

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The reason on this matter was explained in Inocencio v. People, thus:

Verily, the information must state that the accused have confederatedto commit the crime or that there has been a community of design, a unity ofpurpose or an agreement to commit the felony among the accused. Such anallegation, in the absence of the usual usage of the words "conspired" or"confederated" or the phrase "acting in conspiracy," must aptly appear in theinformation in the form of definitive acts constituting conspiracy. In fine, theagreement to commit the crime, the unity of purpose or the community ofdesign among the accused must be conveyed such as either by the use of theterm "conspire" or its derivatives and synonyms or by allegations of basic factsconstituting the conspiracy.^^

By reason of conspiracy, the felonious act of the accountable publicofficer becomes imputable to all, including private individuals.

Accused Aloot-Macazo was denied

her right to preliminaryinvestigation and thus, was notafforded due process of law.

Accused Aloot-Macazo filed an undated Omnibus Motion alleging thatthe cases filed in court were premature because such were still in thepreliminary investigation stage. She prays that the proceedings against her beheld in abeyance.^^

In its Comment/Opposition,'^'^ the prosecution argues that the omnibusmotion of accused Aloot-Macazo should be denied as it lacks a notice of

hearing in violation of Sections 4, 5 and 6, Rule 15 of the Rules of Court.^^

As a rule, any motion that does not comply with the requirements ofRule 15 is not entitled to judicial cognizance. However, this Court is compelledto liberally apply the rules on notice of hearing, where its rigid application willresult in a manifest failure or miscarriage of justice.

Francisco T. Inocencio People of the Philippines, G.R. No. 205760, 9 November 2015 citing the case ofLazarle, Jr. v. Sandiganbayan (First Division), et al., 600 Phil. 475 (2009)." Rollo, Vol. 3, pp. 441 to 442.

Rollo, Vol.4, pp. 131-134.Section 4. Hearing of motion. — Except for motions which the court may act upon without prejudicing the

rights of the adverse paity, every written motion shall be set for hearing by the applicant.Every written motion required to be heard and the notice of the hearing thereof shall be served in

such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unlessthe court for good cause sets the hearing on shorter notice.

Section 5. Notice of hearing. — The notice of hearing shall be addressed to all parties concerned, andshall specify the time and date of the hearing which must not be later than ten (10) days after the filing of themotion.

Section 6. Proof of service necessary. — No written motion set for hearing shall be acted upon bythe court without proof of service thereof.

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In City ofDagupan v. Ester F. Maramba^^ the Supreme Court explainedthe purpose behind the notice of hearing requirement, to wit:

This Court has indeed held time and time again that, under Sections 4 and5 of Rule 15 of the Rules of Court mandatory is the notice requirement in amotion, which is rendered defective by failure to comply with the requirement.As a rule, a motion without a notice of hearing is considered pro forma and doesnot affect the reglementary period for the appeal or the filing of the requisitepleading.

As an integral component of procedural due process, the three-day noticerequired by the Rules is not intended for the benefit of the movant. Rather, therequirement is for the purpose of avoiding surprises that may be sprung uponthe adverse party, who must be given time to study and meet the arguments in themotion before a resolution by the court. Principles of natural justice demand thatthe right of a party should not be affected without giving it an opportunity to beheard.

The test is the presence of the opportunity to be heard, as well as to liavetime to study the motion and meaningfully oppose or controvert the grounds uponwhich it is based. Considering the circumstances of the present case, we believethat the requirements of procedural due process were substantially complied with,and that the compliance justified a departure from a literal application of the ruleon notice of hearing. {Emphasis added)

In the instant case, the prosecution was afforded an opportunity to beheard, as it was able to file its opposition to the omnibus motion. We also notethat the omnibus motion was prepared and signed by accused Aloot-Macazoherself, and not by a lawyer. Being a layperson, accused cannot be presumedto be well versed in law and with the intricacies of the rules of court.

Addressing now the substantive part of the issue, accused Aloot-Malonzo claims that she was not accorded the right to a complete preliminaryinvestigation. Accused added that she filed her counter-affidavit on 8 March2017, upon learning from the news that a complaint was filed against her withthe OMB. However, it appears that her counter-affidavit was filed too late asthe Consolidated Resolution and the Consolidated Order of the OMB were

issued as early as 8 April 2016 and 4 November 2016, respectively.^^

The prosecution contends that the Order of the OMB requiring Aloot-Macazo to file counter-affidavit was returned unserved despite earnest effortsas alleged in its Consolidated Resolution.^^ The pertinent portion of theresolution reads:

^^G.R.No. 174411,2 July 2014."/?o//o, Vol. 1, pp. 19-115.78 Id. Vol. l,p. 36.

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As regards Doria, Villanueva, Barredo, George, Estaloza, Palway andAloot, copies of the same Orders cannot be served despite earnest efforts as theirlast or given addresses are unknown, or said respondents had moved out and leftno forwarding addresses, or were non-existent.

However, the records of the case show that the prosecution indeed failedto send accused Aloot-Macazo a notice and an order requiring her to file acounter-affidavit. There is no proof of service or even attempt to serve the orderfor said accused.

The prosecution further contends that the copy of the ConsolidatedResolution and Consolidated Order were sent to accused but were returned

unserved. Hence, Sec. 4(e) of the Rules of Procedure of the Office of theOmbudsman^^ was applied and the complaint was resolved based on theevidence on hand. However, this does not cure the alleged want of notice bythe 0MB requiring accused to file her counter-affidavit.

Under the circumstances, the Court finds it proper to be liberal in itsapplication of the rules. Guided by the principle of due process, it is in theinterest of justice that accused Aloot-Macazo first be given an opportunity tofile her counter-affidavit or that the counter-affidavit she already filed beconsidered by the 0MB.

WHEREFORE, in light of all the foregoing, the Court resolves asfollows:

1. Accused Dump it, Jr.'s Omnibus Motion for Reinvestigation withMotion to Hold in Abeyance the Determination of Probable Causefor the Issuance of Warrant of Arrest is hereby DENIED for lackof merit;

2. Accused SevidaPs Motion to Quash Multiple CriminalInformations with Motion to Hold in Abeyance Issuance ofWarrants of Arrest is hereby DENIED for lack of merit;

Section 4. Procedure- The preliminary investigation of cases falling under the jurisdiction of theSandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112of the Rules of Court, subject to the following provisions:

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e) If the respondents cannot be served with the order mentioned in paragraph 6 hereof, or having beenserved, does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of theevidence on the record.

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3. Accused Cruz, Ordonez and Amata's Motion to Quash CriminalInformations with Motion to Hold in Abeyance Issuance ofWarrants of Arrest is hereby DENIED for lack of merit;

4. Accused Buenaventura's Manifestation and Motion to AdoptMotion to Quash Information is hereby DENIED for lack of merit;

5. Accused Walican's Motion to Dismiss is hereby DENIED for lackof merit;

6. Accused Aloot-Macazo's Omnibus Motion is hereby GRANTED.The Office of the Ombudsman is directed to conduct a

reinvestigation with respect to said accused in SB-17-CRM-0201 to0203, 0209, 0210, 0213 to 0215, and submit a report on the resultof the reinvestigation within sixty (60) days from receipt of thisResolution.

The Manifestations filed by accused Dumpit, Jr. dated 22 February2017, 13 March 2017, and 28 March 2017 are all NOTED.

Finding the existence of probable cause, let warrants of arrest ISSUEagainst all accused in these cases, with the exception of accused Aloot-Macazo.

SO ORDERED.

Approved.

SMUNDO, Chairpers

/GESMUNDO, Chairperson

GOMEZ-ESTOESTA, J.

TRESPESES, J.